Legal Writing: Form and Substance

Chapter 8

Legal Writing: Form and Substance

Chapter Outline

Introduction
Legal Writing – The Preliminaries
The Importance of Good Writing Skills
Pleadings and Discovery
General Legal Correspondence
The Legal Memorandum

Chapter Objectives

After completing this Chapter, you will know:

What factors you should consider before undertaking a legal-writing assignment
What factors you should consider when drafting a legal document
Some techniques for improving your writing skills
Some basic guidelines for structuring sentences and paragraphs
The purpose and format of the most common types of legal letters
How to prepare a legal memorandum

Chapter Outline

I.INTRODUCTION

A.Legal research, analysis and writing are all part of the same process

B.You must be able to summarize the results of your research and analysis in writing

II.LEGAL WRITING – THE PRELIMINARIES

A.Whenever you receive a writing assignment, you need to understand:

1.The nature of the assignment

2.When it must be completed

3.What type of writing approach is appropriate for the assignment

B.Understanding the Assignment

1.The writing style, format, and methodological approach vary, depending upon what you are supposed to write

C.Time Constraints and Flexibility

1.Must clearly know when the assignment is due

2.Some time frames are inflexible

3.Some issues may need to be addressed overnight

D.Writing Approaches

1.Objective—unbiased analysis

2.Persuasive—present the facts and issues in the most favorable light for your client

III.THE IMPORTANCE OF GOOD WRITING SKILLS

A.The legal profession is a communications profession

B.Good writing skills go hand in hand with successful job performance

1.Organize and Outline Your Presentation

a)Organization is essential to effective legal writing

b)Outline what you are going to write

(1)Put the strongest argument first

(2)Logical sequence to the arguments

(3)Group similar issues together

2.Choice of Format

a)Margin width, paragraph indentation

b)Court documents must conform to the procedural rules of that jurisdiction

3.Structural Devices

a)Complex legal research problem – divide the presentation into several sections, each dealing with one issues

b)Include a “road map” of the document

c)Use numbered or bulleted lists

d)Use descriptive headings

e)Arrange events chronologically

4.Write to Your Audience

a)Legal documents are created for someone

(1)Tailor the writing for the intended reader

(2)Consider how well the reader will understand the subject matter

(3)Do not presume that the reader knows as much as you or your supervising attorney

5.Avoid Legalese: Use Everyday English

(1)Minimize legal jargon

(2)Define terms for the reader

(3)Avoid redundancy

6.Be Brief and to the Point

a)Too many words can hinder communication

(1)Be efficient in word usage

(2)Use only words essential to make your point

7.Writing Basics: Sentences

a)Use short, concrete sentences

b)Forceful sentences should include active, dynamic verbs

c)Write in the active voice, unless the passive voice better suits your client’s position

d)Use correct grammar

e)Proofread your documents

8.Writing Basics: Paragraphs and Transitions

a)Each paragraph should have a topic sentence that says what the paragraph is about

b)Create a new paragraph when you start talking about a new idea

9.Avoid Pronoun Confusion

a)It is common to use a pronoun (such as she, it, or this) to refer to a noun mentioned earlier. Confusion can arise, though, when the pronoun might refer to several different nouns.

10.Be Alert for Sexist Language

a)Avoid sexist language in your writing

(1)Police officer instead of policeman

(2)Fire fighter instead of fireman

(3)Workers’ Compensation instead of Workman’s Compensation

(4)Use he or she

(5)Alternate between masculine and feminine pronouns

C.Proofread and Revise Your Document

1.Allow time to proofread and revise

2.Don’t count on computer spell and grammar checks to catch all your errors

3.Legal documents may go through several drafts before they are ready

IV.PLEADINGS AND DISCOVERY

A.Virtually every document that is submitted to the court must be written persuasively

B.Such documents must contain the required information and must be written in the proper format

V.GENERAL LEGAL CORRESPONDENCE

A.Paralegals will often draft letters

B.Always use the firm’s letterhead when writing as a representative of or for one of the firm’s attorneys

1.General Format for Legal Correspondence

a)Date

b)Method of Delivery and Address Block

c)Reference Line and Salutation

d)Body and Closing

2.Types of Legal Letters

a)Informative Letters

(1)Conveys information to another party

(a)Advise a client about the case

(b)Sent to opposing counsel

(c)Transmittal letter to the Court

b)Confirmation Letters

(1)Communicate certain information to the reader

(2)Confirm a previous verbal communication

c)Opinion Letters

(1)A letter to the client that has a legal opinion about an issue raised by the client

(2)Provides information and advice

(3)May inform a client about the legal validity of a specific action

d)Demand Letters

(1)One party states its legal position and requests that the other party take some action

(2)Tone is serious and persuasive

(3)The demand must not be frivolous

VI.THE LEGAL MEMORANDUM

A.The legal memorandum is prepared for internal use

1.The purpose is to provide the attorney with all relevant information

2.Written objectively

3.Memorandums follow the following format:

a)Heading

(1)Contains four pieces of information

(a)Date the memo is submitted

(b)Who the memo was prepared for

(c)Who wrote the memo

(d)A description of the matter discussed

b)Statement of Facts

(1)Objective description of the relevant facts of the dispute

(2)Logical and concise description of what happened

c)Questions Presented

(1)The legal issues presented by the facts

(2)The question(s) are specific and straightforward

d)Brief Conclusion

(1)Succinct answer to the questions presented

e)Discussion and Analysis

(1)Discussion and legal analysis of each issue presented

(2)Each legal issue is analyzed separately

(3)Questions to be answered in the memorandum:

(a)What is the likelihood of success for the claim or defense?

(b)What law supports the strongest position?

(c)Case law or statutory law?

(d)Case law – how similar are the two fact situations to each other?

(e)What law is against the client?

(f)What arguments can the other side make?

(g)Response to the other side’s strongest arguments?

(h)Options available to resolve the dispute?

(i)Use the IRAC analysis method

(i)Issue

(ii)Rule

(iii)Application

(iv)Conclusion

(v)Give the proper citations for all the law used

f)Conclusion

(1)Culmination of the legal memo

(2)Take a position—your opinion as to how the issues may be resolved

(3)Can make strategic recommendations